Civil Rights Courts LGBTQ

Prop 8: Waiting for the Supremes – THE DECISION’S IN




Very, very sad. But very expected.

COUPLES EXISTING MARRIAGE UPHELD: 18,000 couples—36,000 people— who have gotten married, will remain married.

At least that is one small step for human beings.
Yet weirdly, 36,000 people will have a status that no one else in the state is allowed to have.

On the other hand, this means that 36,000 ambassadors will, by their day-to-day example, show how utterly wrong the Prop 8 proponents are with their contention that gay marriage does harm—as these 18,000 couples simply live out their lives and their marriages with no harm to freaking anyone.

It was a 6-1 ruling, Justice Moreno was the hold out.

Equality California is the group that will be getting a new initiative on the ballot in 2010 to overturn Prop 8.

Maura Dolan at the LAT’s LA Now has a good column already up, (it pays to plan in advance; good job, Maura).
Best one so far.

In a minute I’ll have a link to the actual ruling, but right now the Supreme’s website is so jammed it’s impossible to get in.

MEANWHILE: “All that all of us are asking for is to be the same as everyone else in the country,” says a lovely woman who is one of the 36,000.


If you can’t get in on that link, Howard Bashman of How Appealing,
has uploaded a back-up copy. (Kisses to Howard!)

Here is part of one of the opening paragraphs:

…our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question….

The bottom line is, the court concluded that Prop 8 was indeed an amendment not a revision to the California Constitution.

MORENO disagrees. Here are a few clips from his dissent:

“.. I conclude that requiring discrimination against a minority group
on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution and thus “represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a ‘revision’ of the state Constitution rather than a mere ‘amendment’ thereof……..”


The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage Cases, it places at risk the state constitutional rights of all disfavored minorities. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority…..

…Equal protection principles lie at the core of the California Constitution and have been embodied in that document from its inception…..

…. Thus, it is not so much a discrete constitutional right as it is a basic constitutional principle that guides all legislation and compels the will of the majority to be tempered by justice. The Iowa Supreme Court, in affirming the constitutional right of gays and lesbians to marry, recently recognized the importance of this promise of equality, stating: “If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded.”


Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution.

This could not have been the intent of those who devised and enacted the initiative process. In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning. Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by aconstitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons. I would therefore hold that Proposition 8 is not a lawful amendment of the California Constitution.



As you likely are aware, at 10 a.m. today, Tuesday, the California Supreme Court will hand down its decision on the constitutionality of Proposition 8.

The court will also let us know how they ruled on whether or not those couples married
during the brief window in which gay marriage was legal (namely before the passage of Prop. 8, and after a 4-3 California Supreme Court ruling that declared same sex marriage to be a constitutional right in the state) will continue to have their marriages recognized.

Whatever way the decisions go
, there will be many, many events held across the country to either protest or celebrate.

The smart money is, unfortunately, very firmly on the side of the Supremes upholding Prop. 8. Ken Starr, who was the primary attorney arguing in favor of Prop. 8 when the court heard the matter this past March, was very skilled in countering every argument for overturning the proposition. Loathsome though he may have been in certain…um… past contexts, in front of the California Supreme Court, he was a pro—extremely quick on his feet and was able to spin case law to his advantage with much more assurance and conviction than either Elliott Minter or Terry Stewart, the attorneys arguing on the side of overturning the statute.

(I believe the state had a decent case to make in terms of the Constitutionality of Prop. 8. Regrettably, I don’t think they really made it.)

Yet, there is always the wild, far outside chance
that the court will surprise us. (When they issued their original—pre-Prop 8—ruling that marriage was a right for all Californians, most expected the court to go another way.)

Far more likely is the possibility that the Supremes will allow those who have gotten married, to stay married. Looking back over my notes from the televised hearing in early March, I’d say there is a decent possibility that indeed they will. For one thing, Starr’s argument on this issue of retroactively invalidating the marriages was less energetic. But one never knows.

(AG Jerry Brown is one of those who thinks that the marriages will stay valid.)

The LA Times has published a sort of “Guide to the Supreme Court Decision on Prop 8-–For Dummies,
” that has additional background on the case.

And just so we are reminded exactly what is at stake, here is a letter from a 27-year-old man
named Ryan Kendell who writes about why having the right to get married is so important to him.

And over at the Daily Kos, there is a rundown on the humongous flaw
in our initiative system that allows the state’s constitution to be amended—as with Prop. 8— by less than a majority of the state’s voters.



  • Celeste, Bill Clinton served eight years as President with less than fifty percent of the votes cast and about half that number by registered voters. The President is the most important position in the world, but, you make a challenge that a majority of “eligible voters” must approve a state amendment?

    The real problem is that the Left dictates laws by throwing out votes of the people when they take cases to judges who substitute personal views for legislative and voter intent.

    You’ve lost two out of two of these votes. I guess you don’t want to expand it to the best out of five.

    I’m pulling for the Nuggets over the Lakers in the NBA playoffs. If the Lakers lose, are you going to take the decision off of the basketball court and give it to a sympathetic court? Why play the game if you may not like the outcome and plan to get someone to overturn the results?

  • Had the will of the people succeeded in the Civil Rights cases, the Southerners would all have been against it. It was only the judicial ruling that allowed the people of those states to be overriden. To date, the Supreme Courts of the several states, and finally of the United States, have the last word. That has not yet been abrogated.

  • Comparing special legal and societal concessions for homosexuals to Constitutional civil rights based upon race is a stretch. Next on your list…rights for pedophiles?

    BTW, Elaine, civil rights for blacks and, in fact, reverse discrimination against whites was approved within our representative system without the courts.

  • Yes morals are important in matters of faith and relationships, and I believe that the PRACTICE of homosexuality is a sin. Yet, this is not about morality. It is about the political agendas of Conservative Evangelical church organizations which have so infiltrated the community of faith with their message of hatred towards this or that group. Many Conservative Evangelical church organizations see only one way to assert their identity – through hatred of one group or another. Examples: blacks, women, illegal immigrants, terrorists, gays, etc.
    Please consider: “If anyone says, “I love God,” yet hates his brother, he is a liar. For anyone who does not love his brother, whom he has seen, cannot love God, whom he has not seen.” 1 John 4:20. On top of that, Jesus affirmed, “Love your enemies.” It is easy to love our friends. That is no test of faith or ultimately no test of our obedience to the Law of God.
    I sincerely hope that this message has not been lost among my true Christian brothers and sisters (not those you see on TBN). Someone once said, “‘Be ye fishers of men.’ You catch them, He cleans them!” That sounds like good advice.

  • I believe – and also think the majority of citizens believe – that gay marriage “sanctified” in a church is an abomination. However – I have a gay brother and know something about what gays go through trying to get civil rights. These people are lost, and I pray for their repentance every day, especially my brother’s. But I feel CIVIL unions should at least be a right between two people who love each other no matter their genders. Take a gay man dying of AIDS and a partner forbidden to have power of attorney, or any other civil right that might ease the human pain both tjhese men (or women) are going through. If they had not “come out,” would there be any restrictions on their civil liberties? Probably not.

  • Good column on Prop 8, Celeste.
    However, I’m not so sure about Rossi’s argument @ the Daily Kos.
    There’s simply no quorum required on proposition voting. In fact, the remedy prescribed might actually be a more humongous-er flaw than the original problem. If proponents had to secure a majority of all voters registered, whether they voted or not, then how does one know what the target is for passage of a proposition? One would have to rely on the state to certify the total number of voters. Currently, one can register to vote 15 days prior to an election. Seems highly unlikely that there would be enough time to have that statewide count. But the really big problem would be that unscrupulous actors could merely inflate the number of registered voters. Thus, the potential would be there to blend registration fraud with actual voting fraud.

  • What will the “Supremes” sing today?
    “Nothing But Heartaches”
    “You Keep Me Hangin’ On”
    “I Hear a Symphony”?

  • I like it what Mrs. Elaine say to you Woody. You have only a very small head and must live within it. Also, you have the Mark of the Beast on you!

  • Elaine/Mrs. Salazar,
    you just made me blow coffee out my nose!
    Thank you/garcias.
    Celeste, I enjoy your blog and am amazed at all that you do and accomplish aside from it.

  • BREAKING NEWS: Calif. high court upholds gay marriage ban but allows existing marriages to stand.

  • The people who call me names rather than discuss issues do nothing to advance arguments for their sides. Actually, there is nothing that one can do to advance that side.

    Even if you had received judicial approval today, which is only a matter of time in a degeneratiing world of values, the conscience of society will not be told what to believe in private. In the minds of people, even if something else is on the books, the traditional and one correct view of marriage will prevail.

    Homosexuals used to only want to be left alone. Then they only wanted outward acceptance. Then they only wanted special legal privileges like marriage. You do know, don’t you, that there is no end to their demands and no end to their destruction of our society and government?

    It’s only a matter of time until “normal” homosexuals, wanting even more special laws, will join forces with other and more radical homosexual groups, like NAMBLA. Of course, the future generation of the Left will say that I’m intolerant for not accepting “genuine love” between adult men and young boys.

    Actually, I’m not a bit surprised that homosexual activists like yourself spend more time advancing the causes of gays rather than even thinking about protecting innocent children from such predators. Why not that cause? Check your own values before you answer.

  • I’m anxiously awaiting Celeste’s praise for Obama’s Supreme Court nomination, who will give you any left-wing decision that you want without considering the Constitution or the evidence. She’s what we got when a Republican President tried to reach across the aisle to the Democrats, and now she’s in position to do serious damage with no further appeals thanks to Obama.

    Liberals hate the will of the people.

  • The New Republic
    The Case Against Sotomayor, by Jeffrey Rosen

    Yet, a commenter of that article probably gets it right.

    Relax, folks. These attacks on Rosen are a bit over the top. The man’s a reliable supporter of Obama and probably thought he was doing a favor to the admin by highlighting, however incompetently, the weaknesses in what appears to be their first choice for SCOTUS. If the women is really as smart and capable as her defenders on these boards claim, then she will easily overcome whatever doubts may be raised by Rosen’s admittedly lightweight article.

    She’s a bad choice for America and the Constitution, but she’s perfect for the left.

  • Thanks for the link to the Jeff Rosen piece, Woody. It is certainly getting a lot of commentary—both from the right and the left. Speaking as a journalist, however, I would have preferred it if Rosen had used other than almost exclusively unnamed sources. Rightly or wrongly, it casts a large shadow on what he has to say.

    (I did that here on WLA in my post about past reputation of the former LAPD cop who defrauded his insurance. Frankly, I regret it.)

  • I am now reading Rosen more carefully and reading some of the commentary from other legal scholars (as opposed to bloggers and reporters) on Rosen’s piece. I’ll be pulling links up to the front page.

  • “I’m anxiously awaiting Celeste’s praise for Obama’s Supreme Court nomination. . .”

    Always in a state of cheerful stupidity, right govenor?

  • “It’s only a matter of time until “normal” homosexuals, wanting even more special laws, will join forces with other and more radical homosexual groups, like NAMBLA”

    Woody, you are angry and that is not a true parallel.

  • Okay, Beth, how about Catholic priests?

    BTW, I’m not angry. It seems that you guys are the ones who are angry.

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